Class 




BooloIkL 




I 



Centralization by Construction 

and Interpretation of 

the Constitution. 



AX ADDRESS DELIVERED IN THE ASSEMBLY CHAMBER, 
CAPITOL, ALBANY, N. Y., BEFORE THE NEW YORK 
STATE BAR ASSOCIATION, AT ITS THIRTIETH 
ANNUAL MEETING, JANUARY 15™, 1907, AND 
REPRINTED FROM THE THIRTIETH AN- 
NUAL REPORT OF THE PROCEED- 
INGS OF THE ASSOCIATION. 



By J; Mo DICKINSON, 



OF IUJNOIS. 



,D53 



U. 






<0 



! Centralization by Construction and Interpretation of 

the Constitution. 



The President of the United States in a speech made at 
Harrisburg on the fourth of last October, after referring 
to evils springing from the growth and prosperity of the 
country, the conditions produced by industrial changes, 
and the necessity for governmental action, said: 

" In some cases this governmental action must be 
exercised by the several States individually. In yet 
others it has become increasingly evident that no 
efficient State action is possible, and that we need, 
through executive action, through legislation and 
through judicial interpretation and construction of 
law, to increase the power of the federal govern- 
ment." 

On the 1 2th of December last, in New York, Mr. Secre- 
tary Root, after referring to the changed conditions in 
the sentiments and business and social habits of the coun- 
try, the tendency to do through national action things 
formerly done through the action of the several States, 
the obligation of the States to correlate their action to 
the welfare of the country at large, the stimulation by a 
failure to perform such duty to an " appeal to the general 
government to exercise control over matters that have 
been considered the exclusive right of the States," said : 

11 It is useless for the advocates of State's rights to 
inveigh against the supremacy of the constitutional 



laws of the United States or against the extension of 
national authority in the fields of necessary control, 
where the States themselves fail in the performance 
of their duty. The instinct for self-government 
among the people of the United States is too strong 
to permit them long to respect any one's right to 
exercise a power which he fails to exercise. The 
governmental control which they deem just and 
necessary they will have. It may be that such con- 
trol would better be exercised in particular instances 
by the government of the States, but the people will 
have the control they need either from the States or 
from the national government, and if the States fail 
to furnish it in due measure, sooner or later con- 
structions of the Constitution will be found to vest 
the power where it will be exercised in the national 
government. " 

These statements announced the doctrine of centraliza- 
tion by construction and interpretation of the Constitu- 
tion. In asking your attention to some observations upon 
them and the principles which they involve, I am moved 
by no spirit of party, but only by the conviction that such 
declarations bearing the imprimatur of such great names 
should challenge the consideration and respectful judg- 
ment of all thoughtful Americans, and especially of the 
American lawyers. 

They were made with deliberation, upon important 
public occasions, w T ith full knowledge that they would 
ring round the world, by earnest men, of deep convictions, 
who do not trifle in phrase-making, and whose whole 
minds and hearts are consecrated to the welfare of the 
American people. With the directness and courage of 
Luther when he nailed his theses on the door of the 



church at Wittenberg, they have challenged all comers to 
high debate. I am not presumptuous enough to enter 
the lists as a champion, but only make bold to perform 
the humble office of a herald, to proclaim upon what 
issues the gage has been thrown down, believing that it 
will be lifted by worthy representatives of the great 
American bar, which in its defense of the integrity of the 
Constitution has always been 

" Constant as the Northern Star 
Of whose true fixed and resting quality- 
There is no fellow in the firmament." 

These utterances cannot in the least be minimized by 
opposing to them the personnel of their authors, for the 
one has achieved the highest success at a bar where com- 
petition is the greatest, and has with phenomenal rapidity 
won an international reputation as a diplomat which lifts 
him to the exalted plane .of his great predecessor ; and 
the other, for character and ability, is held in higher 
esteem, both in America and abroad, than any other 
living man. Those who oppose their doctrines cannot 
answer them by arrogating to themselves a higher patriot- 
ism, for the one has, that he might serve his country, 
abandoned professional emoluments that few men in any 
age have had to sacrifice and what yet few r er would have 
the courage and self-denial to sacrifice. The other, in- 
spired with the deepest moral sincerity, and a passion for 
righteousness, is as it w r ere, constantly burning with a 
rage almost divine to advance his country's standard to 
the highest excellence. 

Let us understand the full meaning of what they have 
said. Both are so direct and clear that no interpretation 
or construction is required. A man who runs may read. 
The President says that, in respect of some evils, it is 
evident " that no efficient State action is possible." A 



failure of governmental duty is declared and in analogy 
to the maxim Ubi jus, ibi remedium, a panacea is offered, — 
the substitution of a more efficient government. There- 
fore there is a need " through judicial interpretation and 
5t ruction of law to increase the power of the federal 
government." 

Mr, Root says that so long as the States fail in the dis- 
charge of their functions to measure up to the standard 
that public opinion demands, such dereliction " will in- 
crease the disposition of the people to appeal to the gen- 
eral government to exercise control over matters thai 
have been considered the exclusive right of the States." 
The people here meant are certainly those of other States, 
and possibly some who do not participate in the control 
of the culprit States. The appeal is, to have matters that 
have been considered as exclusively within the reserved 
powers of the several States, controlled by the federal 
government, and is not to be made to the American 
people to effect this change by altering the Constitution, 
but to the general government as now constituted. This 
is followed hard by the statement that it is useless for the 
advocates of State's rights to inveigh against " the exten- 
sion of national authority in the field of necessary control 
where the States themselves fail in the performance of 
their duty." Then referring to these dissatisfied people, 
he says : 

' The governmental control which they deem jusi 
and necessary they will have," 

and the conclusion of the whole matter is thus stated : 

" Sooner or later constructions of the Constitution 
will be found to vest the power where it will be exer- 
cised in the national government." 



The only difference between the two is that the Presi- 
dent says that we need an increase of power in the national 
government through judicial interpretation and construc- 
tion, while Mr. Root says that if the States do not reform, 
sooner or later such increase of power will be acquired by 
constructions of the Constitution. The one implies sanc- 
tion, and may be fairly regarded as the assertion of a 
dogma, while the other declares to such States, " Thou 
are weighed in the balances and art found wanting/' and 
with deep solemnity of prophetic forecast warns them 
that, if they do not mend their ways, their kingdom will 
be divided and given over to another. 

A power expressly given to the federal government 
may become effective by judicial action, and an implied 
power so given may, under conditions not heretofore de- 
manding application, through judicial interpretation and 
construction, be made manifest, and its potentiality in- 
voked, but this would not be in any sense an increase of 
power. To increase governmental power fixed by the 
Constitution, power must be added to power already 
possessed. All power not in the federal government is 
expressly reserved to the States by the Tenth Amend- 
ment. The power here sought to be added is the power 
that some of the States fail to exercise satisfactorily. 
Power recognized as belonging to each of the States is, 
on account of the dereliction of some, to be transferred 
from all the States to the general government. Is it 
probable that States which exercise such powers justly 
and effectively, will willingly surrender them, because 
other States do not attain to the same standard? This 
transfer is not to be made by amendment as provided for 
in Article five of the Constitution, but by interpretation 
and construction of the Constitution. This doctrine is 
revolutionary and dangerous to our national life. 



The Constitution is being exploited as never before. 

The present time will only permit a reference to a few 
instances. 

No vision is so alert, far-seeing and penetrating as that 
of commercial competition. In all ages, when it has been 
advantageous by indirection to promote its cause, it has 
stimulated and even created, movements appealing to 
religion and philanthropy, and enlisted in its services the 
noblest sentiments of humanity. 

Child labor, at ages and under conditions that no en- 
lightened State should and no just State would tolerate, 
is employed by manufacturers, who, on account of the 
cheapness with which they can transmute human lives and 
the hopes of useful citizenship into vendible products, 
either undersell, or make a larger profit than their com- 
petitors. Those whose business is directed either by a 
humanity that will not coin tender childhood into money, 
or controlled by States that shield helpless labor against 
remorseless greed, cry out for protection. 

Generous souls are enlisted in the cause. Barbarity 
must be restrained, and the citizenship of the Republic 
rescued from physical, mental and moral degradation. 
Remedies through the action of the separate States are 
thought to be either inadequate or too slow. A plan that 
will operate promptly and effectively over the whole field 
of wrong must be devised. Inasmuch as the general gov 
ernment has power to regulate commerce among the 
several States, the scheme is resorted to of having Con- 
gress protect such manufacturers directly, and correcting 
State abuses indirectly, by interdicting the interstate 
transportation of such child-labor products. Such a result 
would certainly eliminate the troublesome competition) 
and protect the manufacturer, but if the States shoulc 



not respond with adequate laws, the philanthropist would 
still have to appeal to State action. There is no plan 
however chimerical that has not its advocates. Under 
the pretense of regulation, interstate commerce is to be 
prohibited. The domestic affairs of the State in relation 
to the subject-matter of commerce, before it has ever 
begun an interstate movement, are to be subjected to 
national control ; not with any honest intent of legitimately 
exercising a power, but for the perfectly transparent pur- 
pose of perverting the use of a power, to effect by indi- 
rection, what Congress has no right under the Constitu- 
tion to do. 

Chief Justice Marshall said : 

" It is a general rule, that what cannot be done 
directly from defect of power, cannot be done indi- 
rectly." (Wayman v. Southard, 10 Wheat. 50.) 

And again: 

" Should Congress, in the execution of its powers, 
adopt measures which are prohibited by the Consti- 
tution; or should Congress, under the pretext of 
executing its powers, pass laws for the accomplish- 
ment of objects not entrusted to the government; 
it would become the painful duty of this tribunal, 
should a case requiring such a decision come before 
it, to say that such an act was not the law of the 
land." (McCulloch v. Maryland, 4 Wheat. 316, 
4230 

Under modern conditions fortunes beyond the dream 
of avarice are accumulated with phenomenal rapidity. 
Envy and discontent are aroused. Many regard such 
vast aggregations of wealth under one control, as danger- 
ous to the general welfare, and threatening to our social 



8 

and political institutions. The federal Constitution is 
scanned for a remedy, and the taxing power is invoked. 
It is proposed to curb the evil by the imposition of an 
inheritance tax. No end, however desirable, should be 
sought by an abuse of power. The perversion of a con- 
stitutional power violates the integrity of the Constitution. 
The power to tax is the power to destroy, but not a power 
conferred for the purpose of destruction. 

While the limitations of the purposes for which taxes 
may be levied by Congress address themselves to the 
legislative discretion rather than to judicial determination, 
the bounds set by the Constitution are none the less bind- 
ing. The taxing power of Congress is limited to raising 
revenue for paying the debts, and providing for the com- 
mon defense and general welfare of the United States. 

Mr. Hamilton and Mr. Jefiferson both agreed in the 
construction that " Congress is not to lay taxes ad libitum 
for any purpose they please; but only to pay the debts 
and provide for the welfare of the Union. In like manner 
they are not to do anything they please, to provide for 
the general welfare, but only to lay taxes for that pur- 
pose." (Judson on Taxation, pp. 636, 637.) 

Taxes are burdens or charges imposed upon persons or 
property to raise money for public purposes. (Cooley on 
Constitutional Limitations, 7th ed., 678; Loan Association 
v. Topeka, 20 Wall. 664.) 

The lawful exercise of the taxing power by Congress 
may destroy a business exercised under State authority, 
as was illustrated by the imposition of a tax upon the 
circulation of all banks other than national banks, for the 
manifest purpose of destroying it; but in that case it was 
held that, in the exercise of undisputed constitutional 
power, Congress had provided a currency for the whole 



country, and could restrain by suitable enactments the 
circulation as money of any notes not issued under its 
authority. (Veazie Bank v. Fenno, 8 Wall. 549.) 

Even though a power may, in fact, be exercised, not for 
the purposes of its creation, but as an auxiliary to render 
another power effective, and though it is a " perplexing 
inquiry, unfit for the judicial department, what degree of 
taxation is the legitimate use, and what degree may 
amount to the abuse of the power " (McCulloch v. Mary- 
land, 4 Wheat. 430), such perversion is none the less a 
violation of the Constitution by the legislative department. 
A case may arise " where an arbitrary and confiscatory 
exaction is imposed bearing the guise of a progressive or 
any other form of tax " and then, as was suggested by 
the Supreme Court, it may be considered " whether the 
judicial power can afford a remedy by applying inherent 
and fundamental principles for the protection of the indi- 
vidual, even though there be no express authority in the 
Constitution to do so." (Knowlton v. Moore, 178 U. S. 
109, no.) The accumulation and ownership of property 
and its inheritance, are subject alone to the power of the 
State, except in so far as the national government may 
lay its hand upon it for revenue purposes. (Knowlton v. 
Moore, 178 U. S. 58.) 

When the government of the United States laid claim 
to land in the State of New York, devised to it, the 
Supreme Court held that the devise was void, because a 
statute of New York forbade land in that State being 
devised except to natural persons, and to such corpora- 
tions as were created under the laws of the State. Mr. 
Justice Field, delivering the opinion of the Court, said : 

' The power of the State to regulate the tenure of 
real property within her limits, and the modes of its 



IO 



acquisition and transfer, and the rules of its descent, 
and the extent to which a testamentary disposition 
of it may be exercised by its owners, is undoubted. 
* * * The power of the State in this respect fol- 
lows from her sovereignty within her limits, as to all 
matters over which jurisdiction has not been ex- 
pressly or by necessary implication transferred to the 
federal government." (United- States v. Fox, 94 
U. S. 320.) 

The moral sense of the whole country becomes shocked 
by revelations in regard to the management of insurance 
companies. The State officers immediately inaugurate 
drastic measures, which in many instances operate un- 
justly to the companies. The complaint is now reversed. 
It is of over-action, rather than of non-action. Insurance 
companies prefer the regulation of one to that of many 
sovereignties. In the opinion of many people, State regu- 
lation, though not inefficient, is harmful. The commerce 
clause is drafted into service, and it is sought to supersede 
the authority of the States by substituting that of the 
general government, although probably no question has 
been more positively determined by the Supreme Court 
than that insurance is not commerce, and that Congress 
has no authority to assume jurisdiction over it. 

In response to the open and vehement demands of labor 
organizations, pressed when hostile sentiment against rail- 
roads stimulated by every art of the demagogue had 
reached high tide, the Employers' Liability Act was passed 
in June, 1906. This is not a forum for me to discuss its 
constitutionality. It has within the last few days been 
held unconstitutional in two separate cases, one decided 
by a United States Judge in Kentucky and the other by a 
United States Judge in Tennessee. It is sufficient for my 



II 

purpose to say that even a casual reading of it by an 
experienced lawyer shows that several serious constitu- 
tional questions are involved. It embraces all common 
carriers engaged in trade or commerce between the States 
or with foreign nations, even though interstate commerce 
is but a part of their business, and they are likewise 
engaged in strictly intrastate commerce. It applies to all 
the employes of such common carriers, including those 
who render no service in the transportation of interstate 
commerce, such, for instance, as engineers of local trains, 
section hands, mechanics in car and machine shops, clerks 
in offices and coal-heavers for stationary engines. It em- 
braces all kinds of injuries, and proposes to abolish the 
fellow-servant doctrine in States where it is recognized, 
and this even as between employes totally dissociated 
from interstate transportation. It limits the rights of 
employer and employes to agree upon the terms of em- 
ployment. It establishes a rule for the distribution of 
damages recovered, at variance with those in force in a 
number of the States. All of these provisions are predi- 
cated alone upon the power of Congress " to regulate 
commerce with foreign nations, and among the several 
States, and with the Indian tribes." The bill is founded 
apparently upon the theory that, the right to regulate 
commerce includes the right to regulate the carrier en- 
gaged in such commerce, and that, after the manner of a 
Court of Equity, which having acquired jurisdiction for 
one purpose, will entertain it for general relief, the regula- 
tion can embrace not only the common carrier in its 
relations to interstate commerce, but every person or 
instrumentality controlled by such carrier, however for- 
eign their uses may be to interstate transportation. Thus 
through this ligamen, domestic affairs of States are sought 
to be taken from under their control. 



12 

In addition to these questions, the inquiry arises 
whether the act is in any sense a regulation of interstate 
commerce and so within the power of Congress, and if it 
be a regulation of interstate commerce, whether, inas- 
much as it also provides for regulation of intrastate com- 
merce, it is unconstitutional under the well-settled doctrine 
that if it be unconstitutional in a part w T hich is not severa- 
ble it must fall altogether. (United States v. Reese, 92 
U. S. 214; Trade Mark Cases, 100 U. S. 82; I. C. R. R. 
Co. v. McKendrQe, 2j Sup. Ct. Rep. — .) 

There is another consideration, in connection with this 
act, of serious import. It was passed, notwithstanding all 
that it involved, in respect of the relations between the 
States and the general government, through both houses 
of Congress without a call for the Ayes and Noes, which 
implied either that it was considered to be a measure of 
minor importance, or that the differences of opinion in 
respect of it were so slight as not to demand a record of 
the vote. 

Has it come to pass that a proposed act, which shows 
on its face to any casual observer who has even an ele- 
mentary knowledge of constitutional law, that the right 
of the States to regulate their domestic affairs is seriously 
involved, is too trivial to arouse serious debate? The 
discussions upon its constitutionality w r ere of the most 
informal character. There was a time in the history of 
the Republic when no measure involving such a doubt 
could pass without a thorough test upon all constitutional 
grounds. There were always some devoted patriots, who 
not as partisans seeking party advantage, but as guardians 
of the sanctity of our institutions, were ever vigilant. 
When the rights of the States were involved, however 
long the watch or covert the attack, it could be said of 
some men of the South: 



13 

" They thought they slept, 
The Sons who kept 
The names of olden sires, 
And slumbered while the darkness crept 
About their vigil fires; 
But aye the golden horseshoe Knights 
Their old dominion keep, 
Their foes have found enchanted ground 
But not a Knight asleep." 

Let us now consider the relations between the States 
and the federal government. 

The Constitution of Great Britain, gradually developed 
through six centuries of national life, was established by 
authority of the government. 

-Magna Charta, the first written formulation of English 
civil rights, and political liberties, though based on the 
Saxon laws, and extorted at Runnymede, derived its 
authority from the King. 

The Petition of Rights, and Bill of Rights, though 
quasi-constitutional compacts between the King and the 
people, were enacted by Parliament under royal consent. 

All of them, including the Bill of Rights, though it de- 
clares that its provisions " shall stand, remain, and be the 
law of this nation forever/' can be abolished by the 
government. 

As was said by James Wilson: 

" The British Constitution is just what the British 
K Parliament pleases. " 

The national life of England did not begin with the 
Constitution. It does not continue by virtue of it. The 
government did not derive its powers through the Con- 
stitution. The Constitution came into being only be- 
cause it was sanctioned by the government. If every 
principle of it should be abrogated, their nationality and 
right of government would survive. When the colonies 



14 

declared their independence they did mot ipso facto become 
a nation. They carried with them no Constitution which 
bound them together as one body-politic, or from which 
propria vigore a general government would arise. They 
might have sought their happiness as independent sov- 
ereigns. They might have fused by general acquiescence, 
and without formal agreement, and in the long lapse of 
time evolved a national life. But civilization had advanced 
too far for such tedious processes, and war already rife 
demanded concert of action and some form of govern- 
mental unity. The Articles of Confederation were adopted 
for a " perpetual union between the States," but each State 
retained its sovereignty, freedom and independence, and 
every power, jurisdiction and right not expressly dele- 
gated to the United States. 

It was a " league of friendship " between sovereign 
States (Gibbons v. Ogden, 9 Wheat. 1), which provided 
that " a Committee of the States " appointed by Congress 
should during the recess of Congress manage kk the gen- 
eral affairs of the United States." 

Every alteration of the Articles had to be confirmed by 
the Legislature of every State. 

Then followed our Constitution, ordained and estab- 
lished in order to form a more perfect Union. This was 
the first written Constitution creating an independent sov- 
ereignty. An institutional government brought into 
being at once, supreme as to certain enumerated powers, 
but in perpetual relations with other governments exer- 
cising without limit other sovereign powers, could not be 
created, with any expectation of stability, except by a 
written Constitution. Here is presented the converse of 
the English Constitution. Our Constitution makes the 
government. " It was then that a nation was born." 



i5 

(Miller on the Constitution, 83.) If the Constitution be 
abolished the government created by it will not survive. 
The Supreme Court, speaking by Chief Justice Chase, 
said: 

" The States disunited might continue to exist. 
Without the States in union there could be no such 
political body as the United States/' (Lane County 
1 v. Oregon, 7 Wall. 76.) 

It also said: 

" Without them (the States), the general govern- 
ment itself would disappear from the family of 
nations." (Collector v. Day, 11 Wall. 125.) 

The Constitution was written that its terms might be 
perpetually preserved, without dispute as to the words in 
which they were expressed. Mr. Cooley says : 

" A Constitution is not to be made to mean one 
thing at one time, and another at some subsequent 
time when the circumstances may have so changed as 
perhaps to make a different rule in the case seem 
desirable. A principal share of the benefit expected 
from written Constitutions would be lost if the rules 
they established were so flexible as to bend to cir- 
cumstances or be modified by public opinion. It is 
with special reference to the varying moods of public 
opinion, and with a view to putting the fundamentals 
of government beyond their control, that these in- 
struments are framed; and there can be no such 
steady and imperceptible change in their rules as 
inheres in the principles of the common law. Those 
beneficent maxims of the common law which guard 
person and property have grown and expanded until 



i6 

they mean vastly more to us than they did to our 
ancestors, and are more minute, particular, and per- 
vading in their protections; and we may confidently 
look forward in the future to still further modifica- 
tions in the direction of improvement. Public senti- 
ment and action effect such changes, and the courts 
recognize them ; but a Court or Legislature which 
should allow a change in public sentiment to influ- 
ence it in giving to a written Constitution a con- 
struction not warranted by the intention of its 
founders, would be justly chargeable with reckless 
disregard of official oath and public duty; and if its 
course could become a precedent, these instruments 
would be of little avail. The violence of public pas- 
sion is quite as likely to be in the direction of op- 
pression as in any other ; and the necessity for bills 
of rights in our fundamental laws lies mainly in the 
danger that the Legislature will be influenced, by 
temporary excitements and passions among the 
people, to adopt oppressive enactments. What a 
Court is to do, therefore, is to declare the law as 
written, leaving it to the people themselves to make 
such changes as new circumstances may require. 
The meaning of the Constitution is fixed when it is 
adopted, and it is not different at any subsequent time 
when a Court has occasion to pass upon it." (Cooley, 
Constitutional Limitations, 7th ed., pp. 88, 89.) 

Another learned commentator upon the Constitution, 
Mr. Tucker, says : 

" In these American States the history and usage 
for more than a century has settled that the structure 
of government and the definition of its powers by 
the body-politic should be prescribed in a written 



. l 7 

Constitution, leaving no honest pretext for transcend- 
ing the bounds fixed thereby, in the uncertainty of 
near historic precedents and customs. Sworn to 
obey that written Constitution, the officer who vio- 
lates it must stand convicted of a perjured usurpation 
of authority/' (Tucker on Constitution of the 
United States, vol. i, p. 68.) 

' The idea that usurpation or necessity or a sup- 
posed extension as the consequence of custom or 
progress of society can make jural any power not con- 
stitutionally conferred is contrary to American politi- 
cal science, fatal to the liberties of the people, and is 
only a wicked pretext for the violation of sworn obli- 
gations. Such an idea would really mean this — that 
persistent usurpations of power by a government, 
acting under the prescribed limitations of a written 
Constitution, could amend and change that Consti- 
tution, which by its terms can only be amended and 
changed by the body-politic itself. It would make 
the government a self-creator of its own powers, 
instead of the creation of the body-politic with only 
delegated powers. It would take sovereignty from 
the people and vest it in their government; and 
transfer all political authority by flagrant usurpation 
from the body-politic to the omnipotent government. 
Written Constitutions would be destroyed, and the 
self-usurped omnipotence of irresponsible govern- 
ment would be erected upon their ruins." (Tucker 
on Constitution of the United States, vol. i, p. 6j, 
sec. 54.) 

We must test the theory in regard to increasing the 
power of the general government, advanced by the Presi- 
dent and Mr. Secretary Root, by what are accepted as 
established principles of constitutional law. 



i8 

I rejoice that the question of States' rights is no longer 
sectional. It is a noteworthy fact that when the Income 
Tax was held to be unconstitutional on the ground that 
it invaded the right of the States, two of the dissenting 
Justices who upheld the power of the national government 
were ex-Confederate soldiers. Those rights remaining 
with the several States after the adoption of the post 
bcllum amendments, should be, and doubtless are, as dear 
to all, as they are to any single State. Questions will 
arise, out of conditions, such for instance as those involved 
in the schooling of Japanese in San Francisco, which 
affect peculiarly a State or group of States, but the con- 
stitutional principle involved is just as likely to be invoked 
in behalf of other States, upon conditions totally dissimilar. 

There are now no peculiar institutions that make an 
irrepressible conflict between the States. Closed forever 
is the great debate, beginning almost with the birth of 
the Republic, enduring longer, enlisting more great 
intellects and developing more impassioned eloquence, 
bitterness and hate, than any known in the history of 
Parliaments. Becoming acute in 1820 in the agitation 
over the Missouri Compromise, assuming the fearful 
aspect of nullification and civil war in the tariff discussion 
of 1832, calming down under the benign but temporary 
anodyne of the compromise measures of the period of 
1850, when the great triumvirate swayed the destiny of 
the nation, it culminated in that eventful and sensational 
drama, in which the Southern Senators, in speeches pa- 
thetic and eloquent, surrendered their commissions, to 
cast their fortunes with the new Confederacy, — a drama 
in which was presented the strange spectacle of one of its 
most thrilling scenes being enacted by Senator Baker of 
Oregon, and Senator Benjamin of Louisiana, two sons of 



19 

Great Britain, born in the same year, transplanted in 
childhood to American soil, one to the North, the other 
to the South. , The one a hero in three wars of his adopted 
country, foremost at the bars of three States, bubbling 
over with generous philanthropy, a Bayard in high 
courage and gentle courtesy, leaving the Senate to uphold 
his proud words by brave deeds, like Brunswick's fated 
chieftain, 

" — rushed into the field, and, foremost fighting-, fell." 

The other, the most accomplished Senator, the most 
brilliant debater of his time, the ablest defender of seces- 
sion, left the Senate to consecrate his great genius to a 
cause whose righteousness he believed in even to his 
death, and after seeing it go down in defeat, became a 
fugitive and an exile to his fatherland, and there claiming 
a citizenship that was his right by birth, in a career unpre- 
cedented for rapid and enduring professional success, 
became the recognized premier of the English bar, and 
passed into that constellation of legal luminaries, whose 
brilliancy will endure so long as the gladsome light of 
Anglo-Saxon jurisprudence shall continue to shed its 
beneficent rays. There is a profound teaching illustrated 
by the devotion of these two men, not to the manner born, 
to opposing principles under whose influence they were 
brought by the chance that fixed their environment! 
How impressive the lesson of such influences, when we 
are considering the effects that may come from sowing 
in the minds of the people seeds that may fructify into 
convictions that will provoke a controversy of even more 
tremendous issues than those involved in the Civil War! 

The contest so long maintained between the advocates 
of a strict and those of a liberal construction has passed 



20 

into history. Notwithstanding the fierce opposition once 
existing, which found its highest official utterance in a 
veto message of President Jackson, no one now questions 
the doctrines laid down by the great Chief Justice that 
" the government of the Union, though limited in its 
powers, is supreme within its sphere of action " ; that it 
"though limited in its powers, is supreme; and its laws, 
when made in pursuance of the Constitution, form the 
supreme law of the land, ' anything in the Constitution 
or laws of any State to the contrary notwithstanding ' " ; 
that " let the end be legitimate, let it be within the scope 
of the Constitution, and all means which are appropriate, 
which are plainly adapted to that end, which are not pro- 
hibited, but consist with the letter and spirit of the Consti- 
tution, are constitutional." (McCulloch v. Maryland, 4 
Wheat. 316, 405, 406, 421.) 

As was said by Chief Justice Chase : 

" It must be taken then as finally settled, so far as 
judicial decisions can settle anything, that the words 
1 all laws necessary and proper for carrying into exe- 
cution ' powers expressly granted or vested, have, in 
the Constitution, a sense equivalent to that of the 
words, laws, not absolutely necessary indeed, but 
appropriate, plainly adapted to constitutional and 
legitimate ends; laws not prohibited, but consistent 
with the letter and spirit of the Constitution; laws 
really calculated to effect objects intrusted to the 
government." (Hepburn v. Griswold, 8 Wall. 615.) 

It was announced with equal emphasis by Mr. Justice 
Story, speaking for the entire Court, that " the govern- 
ment, then, of the United States, can claim no powers 
which are not granted to it by the Constitution, and the 



21 



powers actually granted, must be such as are expressly 
given, or given by necessary implication " (Martin v. 
Hunter's lessee, i Wheat. 326), and by Marshall, that the 
national Constitution " was ordained and established by 
the people of the United States for themselves, for their 
own government, and not for the government of the 
individual States.'' (Barron v. Mayor, etc., of Baltimore, 
7 Pet. 247.) 

When the country was yet torn by the passions aroused 
by the Civil War, and the assertion by the seceding States 
of the extreme doctrines of States' Rights, and when the 
entire sentiment of the dominant part of the people was 
unanimous for the excision of every principle that would 
foster a right in the States that would impair any of the 
legitimate powers of the federal government, a unanimous 
Court, speaking through Chief Justice Chase, said: 

" But the perpetuity and indissolubility of the 
Union, by no means implies the loss of distinct and 
individual existence, or of the right of self-govern- 
ment by the States. Under the Articles of Confedera- 
tion each State retained its sovereignty, freedom, and 
independence, and every power, jurisdiction, and 
right not expressly delegated to the United States. 
Under the Constitution, though the powers of the 
States were much restricted, still, all powers not dele- 
gated to the United States, nor prohibited to the 
States, are reserved to the States respectively, or to 
the people. And w r e have already had occasion to 
remark at this term, that ' the people of each State 
compose a State, having its own government, and 
endowed with all the functions essential to separate 
and independent existence,' and that ' without the 
States in union there could be no such political body 



22 

as the United States.' (County of Lane v. State of 
Oregon, 7 Wall. 76.) Not only, therefore, can there 
be no loss of separate and independent autonomy to 
the States, through their union under the Constitu- 
tion, but it may be not unreasonably said that the 
preservation of the States, and the maintenance of 
their governments, are as much within the design and 
care of the Constitution as the preservation of the 
Union and the maintenance of the National Govern- 
ment. The Constitution, in all its provisions, looks to 
an indestructible Union, composed of indestructible 
States." (Texas v. White, 7 Wall. 700, 725.) 
It was declared by Chief Justice Waite and concurred in 

by Justices Miller, Field, Bradley, Swayne, Davis and 

Strong, that: 

:( Within its legitimate sphere, Congress is su- 
preme, and beyond the control of the Courts; but if 
it steps outside of its constitutional limitations, and 
attempts that which is beyond its reach, the Courts 
are authorized to, and when called upon in due course 
of legal proceedings must, annul its encroachments 
upon the reserved power of the States and the 
people." (United States v. Reese et al., 92 U. S. 
214, 221.) 

Mr. Justice Miller in his treatise on the Constitution, 
after reviewing the history of our country and the deci- 
sions expounding the Constitution, says: 

" While the pendulum of public opinion has swung 
with much force away from the extreme point of 
State's Right doctrine, there may be danger of its 
reaching an extreme point on the other side. In my 
opinion, the just and equal observance of the rights 



23 

of the States, and of the general government as de- 
fined by the present Constitution, is as necessary to 
the permanent prosperity of our country, and to its 
existence for another century, as it has been for the 
one whose close we are now celebrating." (Miller 
on the Constitution, 24.) 

In the Slaughter-House Cases the Court said : 

" Under the pressure of all the excited feeling 
growing out of the war, our statesmen have still 
believed that the existence of the States with powers 
for domestic and local government, including the 
regulation of civil rights — the rights of person and 
of property — was essential to the perfect working 
of our complex form of government, though they 
have thought proper to impose additional limitations 
on the States, and to confer additional power on that 
of the Nation. 

" But whatever fluctuations may be seen in the his- 
tory of public opinion on this subject during the 
period of our national existence, we think it will be 
found that this court, so far as its functions required, 
has always held with a steady and an even hand the 
balance between State and Federal power, and we 
trust that such may continue to be the history of its 
relation to that subject so long as it shall have duties 
to perform which demand of it a construction of the 
Constitution, or of any of its parts." (16 Wall. 
36, 82.) 

There has never been the slightest departure by the 
Supreme Court from the principles thus enunciated. 
Within the last year, in the case of Hodges v. United 
States {27 Supreme Court Reporter, 6), in which it was 



24 

held that an Act of Congress making it an offense against 
the United States for private individuals to compel negro 
citizens by intimidation and force to desist from perform- 
ing their contracts of employment, was unconstitutional, 
and that the remedy must be sought through State action 
and State tribunals, the Court, after referring to the three 
post bcllum amendments, speaking through Mr. Justice 
Brewer, said: 

" Notwithstanding the adoption of these three 
amendments, the national government still remains 
one of enumerated powers, and the ioth Amendment, 
which reads, '.the powers not delegated to the United 
States by the Constitution, nor prohibited by it to 
the States, are reserved to the States respectively, or 
to the people,' is not shorn of its vitality.'' (Hodges 
v. United States, 27 Sup. Ct. Rep. 6, 8.) 

These doctrines thus expounded are so deeply imbedded 
in the minds, so securely entrenched in the hearts, of the 
American people, that they are the vital element of our 
national life, the bed rock that supports the structure of 
our Union, the chart of our Ship of State. No power 
recognized as belonging to the States can ever be taken 
away through governmental action, but only by the people 
and in the way they have foreordained. 

But a new doctrine of the respective rights and spheres 
of action of the Nation and the States, and of the way in 
which it may be made effective, is propounded, and that 
great patriot and jurist, James Wilson, is made its sponsor. 
It is described as " big with possibilities for the future, 
and potent to prove the solvent for every constitutional 
problem involved in the delicate questions resulting from 
State individuality and national sovereignty." 



25 

Wilson said in a letter, that it should be made clear that 
there were neither vacancies nor interferences between 
the limits of State and national jurisdictions, and that 
both jurisdictions together composed only one uniform 
and comprehensive system of government and laws, and 
this is interpreted to mean that, whenever the States can- 
not act, because the need to be met is not one of merely 
a single locality, then the national government, represent- 
ing all the people, should have complete power to act. 
To illustrate: the business of insurance is not merely of 
a single locality and it is asserted by many that the States 
cannot effectively control it, and so, notwithstanding that 
it is not interstate commerce, and there is no express 
power of the Federal Government, and no power neces- 
sary for carrying out an express power, under which 
jurisdiction over it can be assumed, a power must be 
derived from the supposed necessities arising from the 
mere volume and territorial expansion of the business. 

In an argument made when the Articles of Confedera- 
tion were in force, upon the inherent right of the United 
States to organize a bank, Wilson said: 

" Whenever an object occurs, to the direction of 
which no particular State is competent, the manage- 
ment of it must, of necessity, belong to the United 
States in Congress assembled. There are many ob- 
jects of this extended nature/' 

This doctrine, announced before our compromise Con- 
stitution was adopted, before the Tenth Amendment to it 
was passed, is proclaimed by an apostle of the new creed 
who is of sufficient prominence to obtain a hearing in the 
North American Review, as a true exposition of the rights 
of the States under our Constitution. 



26 

See how reckless a propagandist may become. After 
quoting the passage just recited, he says : 

" Yet committees of the Congress, while knowing 
the necessity for sane federal action concerning some 
of the corporations engaged in business beyond the 
borders of the State of domicile, whose acts thereby 
extend from and beyond the State of origin into the 
Nation at large, deem the Congress restricted by 
phases of the doctrine of State rights; and even judi- 
cial committees, ignorant of the spirit of the Consti- 
tution as expounded by Wilson, believe the legislative 
branch of the Government paralyzed by reason of the 
judicial development of a dictum which crept into a 
decision of the Supreme Court, to the effect that 
insurance is not a subject of interstate commerce, 
wholly ignoring the fact that federal control may be 
sustained on far broader and more fundamental prin- 
ciples of constitutional interpretation than those gov- 
erning the mere construction of the interstate com- 
merce clause of the Constitution." (North American 
Review, Mid-November issue, 1906; Vol. 183, No. 8.) 

If one be amazed at the manifest error of the assertion 
that Wilson in the passage quoted expounded our present 
Constitution, his voice will cling to his jaws at his further 
statement that " Ere the Constitution left the skilled 
hands of the fathers, there was incorporated in it the 
provision that ' The Congress shall have power to . . . 
provide for the . . . general welfare of the United 
States.' " 

What an emasculation this is of the constitutional provi- 
sion that: " The Congress shall have power to lay and 
collect taxes, duties, imposts, and excises, to pay the debts 



27 

and provide for the common defense and general welfare 
of the United States " ! 

Comment could not be too severe upon an attempt to 
indoctrinate the public mind upon fundamental principles 

of our government by putting before it a clause of the 
Constitution so barbarously eviscerated. I do not dim the 
lustre of Wilson's great name, in protesting against his 
declarations in letters, and arguments under the old Con- 
federation, being exalted into authority to sustain the 
doctrine that our system of government, as expounded 
by a long line of decisions of great judges of all political 
faiths, can be essentially changed by a new theory of 
interpretation and construction. 

Wilson's views of nationalization, as above set forth, 
would, if embodied in the Constitution, have defeated its 
adoption. It was ratified by the convention of his own 
State only after tremendous opposition, and then with a 
negative of twenty-three out of a total of sixty-nine votes. 
The only case involving the right of a State in which he 
expounded the Constitution was that of Chisholm against 
Georgia. Rejecting the unequivocal opinions of Marshall 
and Hamilton, the contemporary exposition which showed 
without doubt that the framers of the Constitution did not 
intend that a State should be sued in a Federal Court by 
a citizen of another State, he claimed warrant for his con- 
clusions from " the direct and explicit declaration of the 
Constitution itself." (Thorpe, Constitutional History of 
U. S., II, pp. 266, 273.) The decision of Wilson and 
Jay, says Justice Bradley, created a shock throughout the 
country. (Hans v. Louisiana, 134 U. S. 1.) 

The day following the decision, a representative of 
Massachusetts gave notice that he would propose a reso- 
lution to amend the Constitution. On the following day 



28 

an amendment was proposed in the Senate. Georgia, 
New York, Massachusetts and Maryland protested. The 
vote for the proposed amendment, which followed the 
phraseology of Gallatin, was twenty-three to two in the 
Senate and unanimous in the House. (Thorpe, Constitu- 
tional History of U. S., II, pp. 288-292.) 

It may be that a Constitution framed upon the views 
held by Wilson would have been better than the compro- 
mise Constitution, which was the strongest in its national 
features that then was acceptable to the people, but how- 
ever grand his conception, it is a perversion of all history 
to make it a guide for constitutional interpretation. 

There is no warrant in any of Wilson's utterances, for 
judicial amendment of the Constitution. In his speech at 
the Convention in Pennsylvania advocating its adoption, 
he said: 

" The truth is, that in our governments, the su- 
preme, absolute and uncontrollable power remains in 
the people. As our constitutions are superior to our 
legislatures; so the people are superior to our con- 
stitutions. * * * If the error be in the legisla- 
ture, it may be corrected by the Constitution; if in 
the Constitution, it may be corrected by the people." 
(Wilson's Works, Andrews Edition, Vol. I, pp. 543, 
5440 

This is the sound doctrine, and is wholly at war with 
the idea that the government which the people have cre- 
ated can itself increase its power, or that such power can 
be augmented except by the people acting in the way 
provided by the Constitution. 

The development of this revolutionary theory is ob- 
structed by an exegesis of the Constitution, venerable 
for its age, and the great judges who have given it sane- 



2 9 

tion. It is proclaimed by the President that "Certain 
judicial decisions have clone just what Wilson feared," 
that many of them are "erroneous and a danger to the 
country. " The remedy proposed is a shrinkage of the 

powers of the States, and an increase of the power of the 
federal government, by judicial interpretation and con- 
struction of the Constitution. 

I believe 'in an increase of the power of our national 
government, that it should be made adequate to control 
everything affecting the general welfare of the people of 
the United States that the States cannot effectively deal 
with, but that it should come in the way the people them- 
selves have provided. The Constitution has had fifteen 
amendments. Whatever the people want can be obtained 
by amendment, except that no State without its consent 
shall be consolidated with another State, or deprived of 
its equal suffrage in the Senate. 

Mr. Lincoln in his first inaugural said : 

" This country, with its institutions, belongs to the 
people who inhabit it. Whenever they shall grow 
weary of the existing government, they can exercise 
their constitutional right of amending it, or their 
revolutionary right to dismember or overthrow^ it." 

He had been elected on a platform that declared : 

6 That the maintenance inviolate of the rights of the 
States, and especially the right of each State to order 
and control its own domestic institutions according 
to its own judgment exclusively, is essential to that 
balance of power on which the perfection and endur- 
ance of our political fabric depend." 

If it be objected that the process for amendment is too 
slow for this lightning age, the answer is that it was so 



3° 

made, that the Constitution might not rest upon the un- 
stable and ever shifting ground of spasmodic public 
opinion. The present Chief Justice, speaking of amend- 
ing the Constitution, said : 

" The ultimate sovereignty may be thus called into 
play by a slow and deliberate process, which gives 
time for mere hypothesis and opinion to exhaust 
themselves, and for the sober second thought of every 
part of the country to be asserted/' (Pollock v. 
Farmers' Loan & Trust Co., 158 U. S. 601, 635.) 

To say that the very forces that make the exigency for 
an extension of the power of the national government, 
will be corrupt enough and strong enough to prevent the 
adoption of proper amendments, is an impeachment of 
both the courage and honesty of the American people. 
If it has come to that, can a government resting upon a 
citizenship so degraded and cowardly, be saved by a 
usurping judiciary? 

The judiciary, controlling neither the purse nor the 
sword, and endowed with no initiative, though in its 
potentiality for the exercise of direct power, the weakest 
department of our government, is of all forces the greatest 
for its conservation. Its strength is moral, and comes 
from the confidence of the people, that the Court is a 
sacred temple of an inviolable justice. . Though judges 
may be assailed by popular clamor, and official protest, 
for righteous deliverances that check the desires of the 
hour, yet, so long as we are fit to survive as a republic, 
justice though tardy, will vindicate them. If they ever 
descend from that high and pure region where judgment 
should maintain its seat, to the lower range where the 
storm and stress of politics, and passions, hold sway, if 



they cease to maintain that virtue of which it can be 

affirmed : 

"Her robes she keeps unsullied still, 
Nor takes nor quits her curule chair 
To please a people's veering will," 

they will betray the highest trust ever confided to any 
human institution, " float wildly backwards and forwards 
on the irregular and impetuous tides of party and faction," 
and hasten the end of stable and constitutional 
government. 

When I was a boy in Tennessee, I heard an ex-Presi- 
dent of the United States, in a speech of two hours' 
duration, before an assembly of more than a thousand 
people standing unsheltered from the intense rays of a 
summer sun, expound our Constitution. When I now 
regard the flippancy w T ith wdiich it is often referred to, 
illustrated by the saying, " What is the Constitution be- 
tween friends," jocularly quoted, and yet profoundly start- 
ling, because it is unfortunately a truthful exposition of 
a too prevalent spirit of the times, my mind turns with a 
sense of awe to that picture impressed upon my youthful 
memory, and it comes back to me now in an aspect that is 
almost sublime. 

The great orators of Greece, no matter what was their 
theme, generally in their orations passed in review the 
nature and development of their institutions, the princi- 
ples that animated the national life, the ways in which 
their greatness had been achieved. 

There should be a general revival all over this land of 
a knowledge of the Constitution and the theory of our 
government. There is too much of iconoclasm in religion 
and law, too much of the spirit of expediency and oppor- 
tunism, too little of reverence for institutions both human 
and divine ! 



32 

We have had one fearful lesson of how, through differ- 
ences in respect of constitutional rights, we may rush into 
a political cataclysm, and we should profit by the example. 

That a movement has been started that may gain such 
headway as will profoundly stir the depths of our national 
life, no thoughtful observer of public events can doubt. 
It will be a curse to the country if it shall become a party 
issue. While no true and enlightened patriot will upon 
such a fundamental question, through party fealty, espouse 
a doctrine obnoxious to his convictions, or fail to oppose 
one that his conscience condemns, there will be many who 
will accept party action as a final adjudication. 

For a truly patriotic championship of the integrity of 
the Constitution, we must look to an enlightened press, 
to those public men who can put country above party, to 
the American lawyers who by training and tradition are 
the defenders of liberty and justice under the established 
law. 



